by Dr Edward Kirton-Darling, University of Bristol Law School
Drawing on Hannah Arendt’s discussion of a public realm and her distinction between the political and the social, this blog examines the ways in which conceptions of public interest can be used to analyse decisions in the inquest context.
Arendt defines ‘public’ in two closely interrelated but not identical ways; firstly it is the opposite of intimate, a space of appearance in which ‘everything … can be seen and heard by everybody and has the widest possible publicity’ (Arendt, 1958, 49). In her (Western, mid-twentieth century) account this public realm has ‘almost completely receded’ (Arendt, 1958, 52), at the same time as her second sense of public – the common shared world – ‘has lost its power to gather [people] together, to relate and to separate them’ (Arendt, 1958, 52). In her analysis, as Miller puts it, the public realm has been usurped by the liberal state who have ‘ultimately handed public affairs over to bureaucrats, experts and “professional politicians”, who enact before a great mass of powerless spectators a cruel parody of public freedom, if not an intimidating drama of arrogant omnipotence’ (Hill 1979, 197).
For Arendt, this loss of public in both senses is linked to a modern growth of the social; attending to production and social and economic concerns, as distinguished from both politics and also from private life. As Pitkin notes in her critical appraisal, for Arendt, as well as Aristotle, ‘what distinguishes politics … is action – the possibility of a shared, collective, deliberate, active intervention in our fate, in what would otherwise be the by-product of private decisions’ (Pitkin 1981, 344). Action in these terms is contingent, unpredictable, and crucially public, and this diminishing role of public action, and the concurrent rise of social and economic production, is central to Arendt’s critique of society. The distinction between the social and the political can be illustrated by her discussion of housing in an interview in 1972. Asked by Albrecht Wellmer to give an example of ‘a social problem which is not also a political problem’ and to explain how it was possible to distinguish between the two, Arendt responded,
Let’s take the housing problem. The social problem is certainly adequate housing. But the question of whether this adequate housing means integration or not is certainly a political question. With every one of these questions there is a double face. And one of these faces should not be subject to debate. There shouldn’t be any debate about the question that everybody should have adequate housing.
A response from another attendee noted that ‘the British government described as inadequate a huge percentage of the housing stock of Britain in a way that makes no sense to a large proportion of the inhabitants who actually live there’ to which Arendt argued
I think this example is helpful in showing this double face of which I have talked in a very concrete way. The political issue is that these people love their neighbourhood and don’t want to leave, even if you give them one more bathroom. This is indeed a debateable question, and a public issue, and should be decided publicly and not from above. But if it is a question of how many square feet every human being needs in order to be able to breathe and to live a decent life, this is something which we really can figure out. (Hill 1979, 318-19).
In her account, social questions can be settled by expertise, but the expert approach taken to the social – focusing on production, labouring, making – should not be transferred to the political public realm. This public realm is a space of plurality, of difference, and of ‘living as a distinct and unique being among equals’ (Arendt 1958, 178), in a world in which human life is not imagined as either individuals alone or as a undistinguishable mass. As Canovan (1998, 163) states, for Arendt, ‘only the experience of sharing a common human world with others who look at it from different perspectives can enable us to see reality in the round and to develop a shared common sense. Without it, we are each driven back on our own subjective experience, in which only our feelings, wants, and desires have reality.’ The public realm is the space for the collective opportunity for the speaking of diverse perspectives, and to make possible that common world in which different views of the same object of discussion are heard.
It is too broad a question for these purposes to ask generally what conditions make it possible to see objects from different views and make space for speaking of diverse perspectives, creating the possibility of a common world and a public realm. But it is possible to examine a narrower question of how this conception of a public realm relates to considerations of public interest in a legal forum, and this is the question I turn to next, drawing on a specific example from inquest law; two decisions in the case of Joy Dove.
I have written about the cases elsewhere and open access copies of the judgments can be found here (High Court, Court of Appeal), but in brief, the case focused on the question of whether a new inquest should be heard to investigate the death of Jodey Whiting (the daughter of the claimant). Jodey was in receipt of various welfare benefits but three weeks before she died, she had had her benefits withdrawn, in a decision by the Department for Work and Pensions (DWP) which was subsequently severely criticized by the Independent Case Examiner (ICE). These issues were not examined in detail at the inquest into her death, which recorded a single conclusion of ‘suicide’, following a 37 minute hearing. It was a concern to have the role of the DWP in her daughter’s death properly investigated which prompted Joy Dove to seek a new inquest.
The process for seeking a new hearing involves an application to the High Court under s.13 Coroners Act 1988, which requires that a new inquest be ‘necessary or desirable in the interests of justice.’ In the High Court, a three judge panel concluded it was not necessary to hold a new inquest, a decision which was overturned by the Court of Appeal.
In the course of proceedings, Counsel for Joy Dove argued that there was a public interest in the investigation going beyond the immediate cause of death, noting that the function of the inquest is to “seek out and record as many of the facts concerning the death as [the] public interest requires” (R v South London Coroner, Ex parte Thompson (1982) 126 S.J. 625, cited at para 67 of the High Court judgment). This requirement of public interest meant – so Counsel argued – that there ought to have been public exposure of the failings identified by the ICE report. Farby J, giving the main judgment in the High Court, did not agree: in her view, the Coroner had reasonably fulfilled her duty to conduct an inquest, and public interest did not require a broader inquiry,
- … whether for the purpose of calling the Department to account or for the purpose of enabling questions of the Department’s conduct to be publicly ventilated. The Department’s policies, practices and conduct in decisions to withdraw benefits raise multi-factorial questions which are matters for ministers and for Parliament. The primary purpose of an inquest is to determine by what means someone has died. There is an ancillary power – now contained in para 7 of Schedule 5 to the 2009 Act – to make a Prevention of Future Deaths (“PFD”) report. However, that power does not dictate the scope of an inquest (R (Butler) v HM Coroner for the Black Country District [2010] EWHC 43 (Admin), para 74 ). In my judgment, an ancillary power to make a PFD report does not imply that a coroner becomes the guardian of the public interest in matters relating to social security. The Coroner has no specialism in these matters and is not well-equipped to undertake such an inquiry.
This is because the complaints system within the DWP concludes with the (autonomous) ICE, and both the ICE and DWP are amendable to judicial review. Furthermore, appeals can be made to the Tribunal, with expertise in
carry[ing] out the difficult balance between protecting the rights of vulnerable social security claimants and ensuring that precious public resources are allocated in accordance with fair but proportionate procedures. I would regard it as contrary to the administration of justice for coroners to stand in the shoes of specialist tribunal judges. (at para 75)
She went on to hold that
- … [T]he cumulative effect of these avenues … do not readily suggest a lack of accountability or a lack of public scrutiny which a coroner ought to remedy. I gratefully adopt the observation of Singh J (as he then was) that “there is no public interest in having unnecessary duplication of investigations or inquiries” (R (Secretary of State for Transport) v HM Senior Coroner for Norfolk [2016] EWHC 2279 (Admin), para 49, with which Lord Thomas of Cwmgiedd CJ agreed).
Warby LJ gave a short concurring judgment, holding that
- … [The ICE report] shows, starkly, that there were multiple failings by staff at the Department before (as well as after) Ms Whiting’s death. The nature of the errors is clearly set out in the ICE report, and in the judgment of Farbey J, and is not in dispute. The Department does not seek to defend them. I see no reason to believe that the ICE’s findings are incomplete or inadequate, or that a further coronial investigation is necessary or desirable to supplement them, or to provide further publicity, or for any other reason.
In the Court of Appeal, the leading judgment was given by Whipple LJ. She held that the decision of the High Court should be overturned as they had failed to properly consider expert evidence on the impact of the withdrawal of benefits on Jodey Whiting’s state of mind. Whipple LJ then turned to consider the question of whether a new inquest was desirable, and concluded it was, for three reasons. The first was that the role of the DWP was a matter of real significance for Joy Dove, and it was reasonable for her to want the Coroner to investigate the issue and reach a conclusion. The second and third reasons turned on matters of public interest:
- … [T]here is a public interest in a coroner considering the wider issue of causation raised on this appeal. If Jodey’s death was connected with the abrupt cessation of benefits by the Department, the public has a legitimate interest in knowing that. After all, the Department deals with very many people who are vulnerable and dependent on benefits to survive, and the consequences of terminating benefit payments to such people should be examined in public, where it can be followed and reported on by others who might be interested in it. Thirdly, if the findings the family seeks are made, it is at least possible that the coroner will wish to submit a PFD report to the Department. It is in the public interest that the coroner at least be given the opportunity to consider whether a PFD report is warranted, in light of the fact that Jodey’s benefits were cut off abruptly, in error, as we now know. If the coroner concluded that the error had contributed in any way, direct or indirect to Jodey’s death, that would be a serious matter to which the Department should be alerted, in order that remedial steps can be taken. Indeed, it may be that the coroner will wish to hear from the Department at the second inquest about any remedial steps which have already been taken in light of the ICE Report and as part of the coroner’s consideration of whether to make a PFD report. Overall, I agree with Mr Hyam that this case bears similarities with Davison, where the fresh evidence raised issues of potentially wider significance and the public interest favours directing a fresh inquest.
Contrasting the two approaches to public interest is revealing. In the Divisional Court, public interest is related closely to expertise, the sufficiency of scrutiny, and the avoidance of duplication. In this account, the ICE report identifying flaws does not need further analysis in a public forum, despite the fact that it is not publicly available, because it is part of a system of expert accountability. The Coroner is not an expert in this sense, and ought not interfere with those processes – it is outside the Coroner’s proper remit.
The Court of Appeal in contrast does see a role for the Coroner in relation to accountability, finding that it is in the public interest to consider whether a report from the Coroner highlighting concerns should be produced. Importantly however, in the Court of Appeal, public interest relates to examining the evidence in public, including potentially hearing in public whether a report to prevent future death is needed, but separately, in informing the public, who have a legitimate interest, and who should be able to follow it and report on it.
It is here that Arendt’s distinction becomes illuminating.
In the High Court, the question of whether benefits were wrongly cut off is treated as a social question, capable of resolution by experts, with no need for debate in the public realm. Accountability mechanisms are needed to correct individual failures in the system, but the need for public debate of the issues raised is not a primary concern.
In the Court of Appeal, public interest is directed to the public realm, to the appearance of information and to informing further action in that public realm. The ways in which decisions are taken by the DWP are, in this account, not (or perhaps, not solely) questions which can be dealt with through expertise in administrative justice mechanisms, but are issues which ought to be available for public consideration.
Following Arendt’s lead, there are aspects of welfare benefit provision which ought not be the subject of any debate, including that support should not be terminated abruptly without proper consideration of the person who will be impacted. At the same time, some questions around welfare support are questions which can be properly considered as belonging to politics, including questions like universality of provision vs targeted support, or questions of how to meld vital systemic considerations, including fairness and equal treatment, with essential values such as pluralism and human dignity. Importantly, having debates about such questions necessarily needs public information and debate, including information on the consequences of abrupt termination of support. Taking this further then, it is possible to develop the approach of the Court of Appeal, to see a perspective which frames appearance and examination of this information as a necessary precondition for being able to see different perspectives and to develop a shared common sense of the world.
Conclusion
Public interest is a key determining factor in the issues an inquest will investigate, delimiting the scope of the inquiry but also determining whether the inquest will conclude with a ‘short form’ conclusion (a single word or two) or will produce a narrative account. As such, questions of public interest permeate the inquest forum, and yet it remains a slippery, malleable concept, capable of being used to justify narrowing or widening the issues the investigation will examine and how it will conclude. This might be a reason to dismiss the value of it as a basis for interpreting what the inquest ought to do, but perhaps turning the question round and asking what conditions are necessary for producing a public realm reveals the potential value of public interest as a way to understand the responsibility of the inquest.
For those new to Arendt who would appreciate further explanation of her work and the public realm, this is a useful introductory video
References
Arendt H (1958) The Human Condition. Chicago: University of Chicago Press.
Canovan M (1998) Introduction to The Human Condition. Chicago & London: University of Chicago Press. Kindle Edition.
Hill M (1979) Hannah Arendt: The Recovery of the Public World. New York: St Martin’s Press.
Pitkin, H. (1981). Justice: On relating public and private. Political Theory, 9(3), 327-352.